THE QUEEN v. IP PAK LING AND ANOTHER

1992, No. MA309

HEADNOTE

    Magistracy appeal - theft - prosecution putting their case on one basis - at virtual end of trial magistrate inviting prosecution to change the basis of their case - role of a magistrate - unfairness.

IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 309 OF 1992

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J U D G M E N T

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1. These two appellants were convicted before Mr. Carlson of stealing some spare parts from their employers and were convicted and fined. This is an unfortunate case because the magistrate has obviously taken a considerable amount of time and trouble in his decision and has prepared his Reasons in an impeccable.manner. He came to the conclusion that the facts proved they dishonestly appropriated goods to which they were unauthorized and therefore the offence was committed.

2. However, the case, as opened and dealt with by the prosecution, was that the prosecution had to prove so the magistrate was sure that the defendants did not intend to pay for these goods. The case was conducted on that basis. Witnesses were called, cross-examination took place and at the conclusion of the Crown's case, a submission was made of no case to answer, on the basis that, as the defence counsel submitted, all the facts pointed to a position where the defendants intended to pay for that which they used. In my judgment, the magistrate should have upheld the submission of no case on the basis of the way the Crown had presented the case; all the evidence was one way and he should have acquitted them there and then. He rejected this submission and they then elected not to give evidence, as they were perfectly entitled to do. The magistrate listened to some further submissions and then himself said that the Crown could put their case in quite a different way. He said that the concession which the Crown had,made was not binding on him and it was not unfair to continue with the case on quite a different basis.

3. In my judgment, that was a serious error by the magistrate. First, I doubt whether a magistrate or a judge has power to force the prosecution to put their case in a different way, but even if he does, and I am not deciding that point, he should have adjourned the case immediately to allow the defence an opportunity to take further instructions. It may be that a further proof of evidence was required. It may be that the Defendants would have given evidence.

4. He said that it was not unfair because counsel then appearing for the appellants accepted that the concession did not bind him. The least said about this matter the better. I do not know what experience the then Counsel had or whether there was undue pressure put on him, but I have no doubt the magistrate was wrong even to put that sort of question to counsel. He should have adjournedthe case and indicated that as the Crown wished to put their case on a wholly different basis, Counsel could take further instructions and consider what he should do.

5. It may be that all the witnesses would have been re-called and cross-examined to deal with this different matter. Counsel was really being deprived of the opportunity of discussing the matter with his clients, explaining to them precisely what was happening and considering what he should do. Despite, as I said, the great care the magistrate has made in his findings on dishonesty, the decision is seriously flawed. His approach was not only unfair, but manifestly unjust.

6. If a judge directing a jury has a case presented in one way, it is quite wrong of him to direct the jury on a different basis. The magistrate said that he was bound to apply the law as he perceived it to be, but his role is to decide the issues which are raised before him. He should not assume the mantle of prosecutor, nor give the appearance that his function is to achieve a conviction. In my judgment, this conviction was wrong and the appeal is allowed. The appellants will have the costs of this appeal, to be taxed if not agreed.